A loss of face for America

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A court drawing, approved by the US military and with faces removed, shows David Hicks flanked by military police during his Guantanamo Bay hearing.

The military hearing of accused terrorist David Hicks has exposed US double standards. Marian Wilkinson reports.

Two days after arriving at Guantanamo Bay from the other side of the world, an exhausted Terry Hicks, with tears welling in his red eyes, dealt a public relations blow to the US Government's carefully planned military trials for accused terrorists being held there.

Hicks was given a global stage to humanise one of the most infamous of the 585 Guantanamo Bay detainees who have been hidden away on this barren tip of Cuba for almost three years.

Asked by a reporter what happened during the long-awaited reunion with his son, David, Hicks said simply: "Hugging and kissing, the normal thing. It's going to be a while before we see him again, so it was pretty tough."

For many Australians, David Hicks, the young adventurer who left Adelaide to fight in a jihad and ended up in an al-Qaeda training camp, will never arouse much sympathy. But in front of the world's media, his father was able to persuade some that his son was, at the very least, a human being with legal rights.

The opening days of President George Bush's military commissions at Guantanamo Bay to hear the case of Hicks and three other alleged terrorists have been a global public relations failure for America. Even the proud admission by one of the accused, a Yemeni, that he was a member of al-Qaeda, could not drown out the criticism of the human rights observers who arrived here to watch these historic proceedings.

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As Human Rights Watch deputy director Sam Zia-Zarifi said on his way to the heavily guarded military court room, international human rights law was not made by the easy cases but the very difficult ones.

The Pentagon argues strenuously that the release of any Guantanamo Bay detainee who could return to the battlefield and launch a terrorist attack on Americans would be an unacceptable failure of its national security obligations.

Human Rights Watch has long demanded that insurgent fighters, with al-Qaeda or the Taliban, face justice if they have attacked or murdered civilians. But the phalanx of human rights observers gathered here are also arguing that the accused should face a competent, fair and impartial tribunal to determine their guilt or innocence.

This tribunal would fall far short of any international standards. SAM ZIA-ZARIFI, Human Rights Watch

After watching the first days of Bush's military commissions, they were deeply concerned. "I would suspect this tribunal would fall far short of any international standards," said Zia-Zarifi.

Soon after the five-member military panel, led by army Colonel Peter Brownback, took their seats, it was clear that the courtroom would be the setting for a historic and uncomfortable clash between America's role as a champion of human rights law and the Bush Administration's "war on terror" in the wake of September 11, 2001.

Terry Hicks (right) and lawyer Stephen Kenny talk to reporters about the hearing of David HicksPicture:Reuters

When Hicks strode through the doors into the court, flanked by two MPs, the 29-year-old one-time jackaroo was given a central role in this legal battle that has profound implications for international human rights law. Hicks, short and stocky with his hair cropped in a buzz cut, listened as his defence team, New York attorney Joshua Dratel and marine Major Michael Mori, challenged the military commission on 19 grounds, claiming it was incapable of giving him a full and fair trail.

Within minutes of the hearing's opening, Dratel repeatedly questioned Brownback on his close personal and professional relationship with John Altenburg, the senior Pentagon official who had selected him to lead the military commission.

Brownback acknowledged the friendship but said he had a record of making independent judgements.

Military officials had asked that the names of the panel members, except for Brownback, be withheld. But when every member was challenged over his ability to provide a full and fair hearing, the media lifted this embargo.

Panel member Colonel Thomas Bright acknowledged that he was personally involved in the transfer of prisoners from Afghanistan to Guantanamo and that he recognised Hicks' name from that operation. Another member, Colonel Timothy Tommey, said he was a senior military intelligence officer on the ground in Afghanistan for three months from November 2001, around the time that Hicks was captured.

More problematic for the defence was panel member Lieutenant-Colonel Curt Cooper, who will act as an alternate if another member drops out. He freely admitted he had "very strong emotions" about September 11 and felt a "real and present apprehension" that sitting on the panel judging Hicks could lead to his being harmed by terrorists.

None of the panel members, apart from the presiding officer, has any legal experience, although there are complex international law issues at stake.

Cooper was hesitant when asked on the opening day by another defence lawyer, Lieutenant-Commander Charlie Swift: "Do you know what the Geneva Convention is, sir?"

"Not specifically, no sir, and that's being honest," he replied, adding that he was looking forward to reading the three conventions.

Swift told him: "Actually, there's four, sir."

Before entering the hearings, Swift, who represented a Yemeni driver for Osama bin Laden, said in a statement: "Never in American history has a President or a Defence Department asserted this raw power and certainly not after the revolution in international law heralded by the 1949 Geneva Conventions, which the United States signed and ratified in 1955. The current Military Commission flatly violates not only the United States Constitution, but the very Laws of War the Administration claims to be upholding".

The divisive debate over the legal basis of the commissions was apparent when Brownback was asked by Swift if he believed the orders establishing the commission were lawful. Brownback paused, and to the surprise of some observers, said: "I choose not to answer that question at this time."

But despite the challenges to the commission mounted by the defence lawyers, Brownback said he would continue the hearings because it was the role of the Pentagon official who appointed him to decide whether he or any other panel member should be removed.

Throughout the hearing, a representative for Australia's Attorney-General, Philip Ruddock, sat listening to the arguments of Hicks' lawyers. Hicks, instructed by his lawyers to affect a calm demeanour throughout his day-long hearing, answered only "yes sir" to a handful of questions from Brownback and read quietly through the charges against him of conspiracy to commit war crimes, attempted murder and aiding the enemy.

Finally, at the end of the hearing, he was asked by Brownback: "Mr David Hicks, how do you plead?" He answered in a steady voice: "Sir, to all charges, not guilty." He then lifted his shoulders and let out a long sigh. As the hearing ended, Hicks turned to his lawyers and smiled for the first time.

Brownback has set the date for Hicks' trial by military commission for January 10. If convicted, he could face life imprisonment. But immediately after the hearing, his defence lawyers made it clear they would be attempting to stop the military trial from going ahead at all costs.

"This is a system that the United States would not tolerate for its citizens, that Britain will not tolerate for its citizens, I can't understand why David Hicks' life has to be placed in this position", said his military defence lawyer, Mori.

Next week, Hicks' lawyers challenge the military commission in its entirety in the US Federal Court in Washington, a right they believe they won after the US Supreme Court found in June that the Guantanamo Bay detainees could not be held indefinitely without access to a hearing.

"We believe that we will get David home, that's what drives us," said his civilian lawyer, Dratel.

The night after his momentous appearance in the military court, Hicks was back in Camp Echo, in the small isolation cell where he has been held for the past 10 months.

Until his next hearing, he will remain there 23 hours a day, seeing daylight only through a slit of opaque window and talking to no one except his military guards, a military doctor and, occasionally, his lawyer.

But unlike the 584 other detainees at Guantanamo Bay, that day at least, he had been hugged by his father.